Tuesday, June 14, 2011

Neuborne on Race and the Warren Court

Burt Neuborne (New York University School of Law) has posted "The Gravitational Pull of Race on the Warren Court," published in The Supreme Court Review, Vol. 2010, No. 1, pp. 59-102.

Here's the abstract:

My thesis in this article is that concern over racial injustice and state institutional failure was so intense during the twenty-one, “Warren years,” from 1952-1973 that it played a significant role in shaping many of the most important constitutional decisions of the Supreme Court in areas as diverse as federalism, separation of powers, criminal law and procedure, freedom of speech, association, and religion, procedural due process of law, and democracy. I believe, as well, that at least some of the changes in constitutional doctrine that have taken place in the post-Warren era, such as the erosion of the exclusionary rule, the rebalancing of federal-state power, and the easing of restrictions on aid to parochial schools, reflect both a decrease in the intensity of the Court’s concern over racial injustice, and an increase in the legal system’s confidence in state and local institutions to act fairly in racially-charged settings. I begin with a summary of selected aspects of Warren Court constitutional doctrine having nothing directly to do with race, arguing that the Justices’ concerns over racial injustice and regional failure to deal fairly with race exercised a gravitational pull on the evolution of constitutional doctrine. I then turn briefly to whether such a gravitational pull should be cause for celebration, condemnation, or a shrug of the shoulders. Finally, I ask why, once the gravitational pull of race had ebbed, certain Warren Court constitutional precedents that appear to owe their genesis, at least in part, to concern over racial injustice and regional failure have flourished, while others have melted away.